ML20080A546
| ML20080A546 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 10/25/1994 |
| From: | Wilmoth M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#494-15856 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9411010152 | |
| Download: ML20080A546 (13) | |
Text
P.O2 OCT ~T-1994 20:51
/585(o
~
DOCKETED USNRC October 25, 1994 94 DCT 26 AL :03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARI{)p p gy,, _ 7. p [ 7p,,
00CXLiiN:
Before Administrative Judges:
9pp pc,/ ;,,,c
r Peter B. Bloch, Chair Dr. James H.
Carpenter Thomas D.
Murphy
)
In the Matter of
)
)
Docket Nos. 50-424-OLA-3 GEORGIA POWER CCMPANY
)
50-425-OLA-3 31 ph,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 INTEPV_RLOR' S MOTION FOR PROTECTIVE OPl)ER 1
COMES NOW, Intervenor, Allen L. Mosbaugh, through counsel, and moves this Honorable Board, pursuant to 10 C.F.R.
S2.740 (c),
to issue a protective order prohibiting Georgia Power Company
("GPC") from denying access to documents produced during the course of discovery that are held in the office of its Atlanta counsel and to require GPC to preserve the documents intact through the conclusion of this litigation.
Intervenor request this order, which justice requires to protect him from prejudice to his case, undue burden and expense, for the following reasons.
Introduc31on In the course of discovery Intervenor sought information from Licensee that resulted in the production of tens of thousands of pages of documents.
Licensee decided to establish a repository for these documents, and placed them in the Atlanta 9411010152 941025 DR ADOCK 05000424 PDR y
s: r _;s - 1,.,.a
- e
- :2 e
office of Troutman Sanders.
Because the documents are in Atlanta and Intervenor's counsel is in Washington, D.C.,
there has been only a few occasions when Intervenor or his counsel have been able to sift through the " wall of documents," now exceeding 63,000 pages, to search for documents supportive to his case.
At the October 17, 1994, status conference Licensee commented, for the first time, that it would be denying Intervenor further access to the wall of documents.
D_iA9LuRLign_
A.
Location Has Proven Troublesome for Intervenor.
Intervenor previously requested that the documents be transferred to the Washington, D.C.,
office of Licensee's counsel. (See May 9, 1994 Letter of Michael Kohn attached as
" Exhibit 1").
This request was made because having the documents in Atlanta made reviewing and retrieving the documents difficult.
Licensee's counsel, David Lewis, responded that they "did not believe that relocation of these documents, many of which are originals needed in Atlanta, is reasonable or appropriate."
See May 17, 1994 letter from Lewis to Kohn attached as " Exhibit 2."
Intervenor included this issue as an item on its agenda for the May 26, 1994 status conference.
Intervenor and Licensee discussed this and several other issues off the record; no mention of cutting off access to the documents was discussed or intimated.
After some discussion, Licensee's counsel stated on the record that they would attempt to make the documents more accessible to Intervenor and would:
2 1
DC T-2E-A GM 13 G do a better job...in accommodating Intervenor's request for times during which they can review documents at the offices in Atlanta...The documents will not be moved to Washington but rather we will attempt to accommodate cff hours and mechanics for making copies of the documents which we've discussed but haven't reduced to inny final rules that I can outline for you.
But c learly there is a sense that we'll be able to work our vay through it.
Tr. 420-21.*
During the course of the October 17, 1994, status conference Licensee commented that they would be denying Intervenor further access to the documents because Intervenor's right to the documents ended with the close of discovery.
At no time prior to October 17, 1994 did Lie 2nsee or its counsel intimate or mention cutting off Intervenor's access to documents.
i To deny Intervenor access to the documents at this point in this complex litigation would severely prejudice his presentation.
Furthermore, as the date for the commencement of the hearings approaches access to these documents becomes more critical.
Justice will not be served by allowing Licensee to deny access on a whim.
f B.
Continuing Access to Documents Is Ncconaary Continuing access to documents should be granted in complex cases.
In Board _of Educ. of Evanston TP v. Admiral Heatino, 104 F.R.D. 23, 35 (N.D.Il. 1984), the defendant produced discovery Intervenor's counsel further explained to the Board that he was not waiving Intervenor's right to request the transfer at a later time based on Licensee counsel's indication that "an accommodation" could be reached.
Tr. 422.
Had Licensee intimated that they would cut off access before the hearing concluded, counsel would have renewed his motion and the Board and the p*.rties would have resolved the matter.
3
.2-ca-se a ;m documents in the office of its counsel and asserted that 90 days was adequate to review the documents and identify those that were relevant. Id.
The plaintiffs argued that without the flexibility continuing access affords, they will be forced to incur the substantial and unnecessary expense of copying all of the documents regardless of their ultimate relevance.
Id.
The Court noted that " continuing access is often granted in complex litigation, usually through the use of a centralized document depository," and concluded that it was reasonable for the plaintiffs to have continuing access.
Id.
Also see In Re Shell Oil Pe f i ne ry, 125 F.R.D.
132, 134 (E.D. La. 1989)
(" continuing access to documents is necessary").
The litigation at hand is complex and the amount of documents voluminous.
Georgia Power chose to create a repository for these documents at the office of its Atlanta counsel, and no deadline to access was ever indicated.
After vo.luntarily agreeing to make the documents more available, it is inconceivable that GPC would suddenly restrict access to the documents as Intervenor begins hearing preparation.
Had Licensee provided notice that it would be cutting off access (which Licensee should have disclosed when the matter of access to documents was brought to the attention of the Board by Intervenor), Intervenor's counsel could have argued that this was appropriate or planned to allocate resources for additional not 4
r.v.
0:T-;E-issa lo:EI review and photocopying of relevant documents.8 For these reasons, Intervenor has labored under the impression that he would have reasonable and continued access to these documents until the hearing record was closed.
Conclus_1gn For the above stated reasons Intervenor requests this Honorable Board to issue a protective order prohibiting Georgia Power Company from denying access to the " wall of documents" produced during the course of discovery.
Additionally, Intervenor requests the Board to require GPC to preserve the documents intact through the conclusion of this litigation.
Respectfully submitted,
& f d lll $
Midhae p.~KoKil'
~ "-
Mary Jane Wilmoth Kohn, Kohn and Colapinto, P.C.
517 Florida Ave.,
N.W.
Washington, D.C.
20001 (202) 234-4663 Attorneys for Intervenor While reviewing documents in
- Atlanta, Intervenor's counsel request that he be provided a key card for copying documents and access the photo copy machine located in the room where the documents were stored.
Intervenor's counsel agreed to pay for any documents he copied with the card.
This request was denied and counsel to Licensee insisted that every document had to be given to GPC's counsel, who would copy them.
Intervenor's counsel further requested to be allowed to remove documents to a photo copying center and have documents copied over night.
This request was also denied.
Intervenor did not want to designate certain documents to Licensee's counsel before the close of discovery believing that to do so could interfere with his cross examination of witnesses during deposition.
5
OCT-25-1 Mi 20:55 P.Od KOHN, KOHN, & COLAPINTO, P.C.
ATTORNEYS AT LAW 517 FLORcA AVENUE. NW WASHINGTON, OC 20C01-1850 (2C2) 234-4863. FAX [202] 462-4145
. acut te n. ec u c,.u L c o.w.W...
. acurm W.a
- u <C e AfhaTTED iN w 2 Dayt0 K. CpN'O a..
. AuuTTED W %
- ACMTTED W sa E. CDCP5M IWONN -
acedTTY R E80 S'aQT*
CateCL 1 CGH*my...
May 9, 1994 Via Facsimile Ernest L.
Blake, Jr.,
Esq.
David R.
Lewis, Esq.
i Shaw, Pittman, Pitts & Trowbridge 2300 N Street, N.W.
Washington, D.C.
20037 John Lamberski, Esq.
Troutman Sanders Suite 5200 600 Peachtree Street, N.E.
Atlanta, GA 30303-2216 Re:
Vogtle Electric Generating Plant, Units 1 & 2 License Amendment (Transfer to Southern Nuclear)
ASLBP No. 69-671-01-OLA-3 Decket Nos. _5 0 - 4 2 4 -O LA-3 ; 50-425-OLA-3
+
Gentlemen:
As counsel to Intervenor, I am formally requesting that all documents produced in response to interrogatory questions and document requests of Intervenor or NRC Staff be made available to Intervenor's counsel at the law offices of Shaw, Pittman, Pitts &
Trowbridge, located at 2300 N Street, N.W., Washington, D.C.
It is my understanding that this documentation is currently located at the law offices of Troutman Sanders in Atlanta, Georgia.
This request is made for two reasons.
First, Atlanta, Georgia has proven to be a difficult location for review of documents.
Neither Mr. Mosbaugh or his counsel reside in Atlanta and the travel time, costs and inconvenience of traveling and ' staying in Atlanta to review documents is excessive. Second, Intervenor's counsel wishes to limit his contact with Troutman Sanders as much as possible for reasons which need not be repeated.
Exhibit I
,page I Of 2
~
Y
v:.i.;- - a.. : : :.
Page 2 Letter of Michael Kohn May 11, 1994 Intervenor requests that these documents be transported to Washington, D.C.,
as soon as possible.
Intervenor also notes that is important that he and his counsel have ready access to this documentation Monday through Friday, between the hours of 9 a.m.
Intervenor further requests that his counsel either be and 5 p.m.
able to remove documents for photo copying at his offices or that Licensee's counsel provide Intervonor's counsel with a key counter Intervenor can make copies at his own and photo copy machine so expense.
Should you refuse this request, Intervenor Will seek relief from the ASLB.
As such, Intervonor requests that you respond to this request by the afternoon of May 17, 1994 so Intervenor can advise the Board of a proposed agenda item before the next scheduled conference.
Sincerely, M L Michael D.
Kohn cc:
Charles Barth, Esq.
301\\let.ed 9
e 9
Exhibit 1,page 2 of 3
._ _ ~
'OCT-&>5-1 M4' ag:sg r.11 7
SHAw, Pirl MAN, Porrs & TROWBRIDGE '
-.~.~_.._x 2300 N STF4 RET. N.W-tao 1 f4aA8md CASCC me.
- " **N.VHNasN a zzice m ;
WASHINGTON. D.c. 20037112e (202) ea34000 eYeoor t, 7,Ju g,,, 7,,;g y,,j cm na -,
(302) 443 4 474 May 17, 1994 By Telecopy Michael D.
Kohn, Esq.
Kohn, Kohn & Colapinto 517 Florida Avenue, N.W.
Washington, D.C. 20001-1850 In the Matter of Georgia Power Company Units 1 & 2)
(Vogtle Electric Generating Plant, Docket Nos. 50-424-OLA-3, 50-425-OLA-3
Dear Michael:
1994, you requested that all of the In your letter of May 9, documents which we previously produced be relocated to We do not believe that relocation of these docu-is reason-Washington.
ments, many of which are originals needed in Atlanta, able or appropriate.
9 Sincerely, 0
m David R. Lewis Charic.s Barth, Esq.
cc:
M:/0329/0 8DAL.94 Exhibit 2,page I of._l
p,1; OC.T-25-19al 20:56 420 i
t it t o t. hem a t. t he aart.e t irr.e that we g"t. them 58.
But in any "vont, th.it in the ochedule.
JrIDriE HL0Gl:
If rhe pattles know what you're 1
4 ta1kinq about, t hat is fine.
I really don't understand what yvi hav. said at all but that is okay, if the parties are r.
n a t 2 :st i n cl.
I don't know what the agreement is.
I knew
'l ne,.ri - h i n i a g,ing nn t hat has something to do with an H
a s t,ntu nt.
'e MN. BLAVE:
Ther" ara transcripts for ca:h of jo t h"no t. ipos and di f f at ent pat r ias heard dif f erent things on 11
- f. h" t apon and had cli f f"t ont v":nions of what t. hose 1,
t.
.stu v e i pt n a u q bt t r,
-rad.
And this is the reconcili tion 3,
... h.
. xt ent wo c.in dn it, the agreement between the 14 p.s t ' i "o on what. tnan" t.apon actually say.
And, in fac', 57 l'
a "' I ' ri a t,- t ho April t r*t h t apa s, among them, important in 0
tht4
. i n..
- 8.
- t h i.4 i s p t e t t ',' impottant stutf Numb"r 1 ! think wr*vo covetod, corri'let ion of 11 1,4 d:nr. y !.3r tho dinnel P not at e r pnash.
t.
Numi. r 4 was the ir.tervonor's request that we move 1ikonvoo'n d> cum"nto to washingtor..
Our agreement. on that
/e
- 1 t o t hat wo will do a bat te r job as licensae in accommodating ic i nt.'r vonor
- o r equest f or t.imes during which they c.
review
/t dr.:um"itt a at tho of f ic-s in Atlant.
whore the documents are 24 stet r"1 Tha dnc umerit s will net be tro'.%d to W ashington but t'.
t at he r wo wt11 at t empt. to accommodate ofC hours and l
ANN R II.F.Y 1.
ASSOCIATES, hTD.
l Court Reporters
-l
- h' }
- 1250
- Street, N.W.,
Suite 100 Washington; D.C.
20005 i
/
(202) 842-0034 f
Exhibif1,page /
of d '
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.,., e e b.
.ma-f.ee. a 4-
~~~.Mb
OCT-25-1994 20:56 t'.13 tor makinq copies of the documents which we've m.v:h.in t "9 I can rarluce 1 to any f inal rules that.
2 Jine:unn d but haven't
. it I i n.
!oi y.o -
l$u t </i**stly t ha.*!" is a nertse that we'll be able to 4
W,1k out w.ty L h!'Ott'th i t.
I ehink t. ha' rcor.rludes.
e.
.ffn/;E H://:ll:
The t a must be some of t_ hone 7
1.c um"n* n.i ! t ".i ly i r. W.i:4h a rnt <>n.
9 MR. 41..V E Sur", nome hav" beoti provided, and as thosa documents npect!ie r "qu"!.t s Io r document.n,
1o eh":o as"
- 1
.se" <t"nor 11y provirlod.
B u t., fer exampio, we don't have a t.'
n"t
- our officro in W. inh i rnt on, t hat in n our law firm's 14
. i f f i, <- i n W. inh i n<p r.n. or w" ' <l ho able to mako i' available I.,
e<
'h"m.
Th"y'to usod i n At I ant..t t o work sith the l'.
w t ' tu'
."n, t.' w t k <,ri dine >v"ty responnors, and wa've not 1,.
un !", e a.. n t.- rr.4 k e in<.t h< 2
."! of thin 1it aral wall of v
{
1/
' { n 11Me
- f t? fi.
MP.
"M.Al ! ?; " :
Y e.u t liono r, l ' <l like t.o say that.
(9 Mi is 1 ik" h.n
i'af"ly
.um -a e i 7"ti tho a=1t ecm"nt n wo i,8.iclied an i I hi."to i t'ta.morni him becausa it was a larga
. im t i t t e t.
Atirl t ho r'ne t hat I t hink naads a 1ittle
//
. l.i t if i c.it 1..
i n t he i.n o t. nuo wo sl i p r't:9 0ed. item number 4,
t nr. I d'
- t V"I' r'n J t eTon"d 1 Jofitla.
Int et venor has not waived l
c.L
. su r tilhe te.u:k i nei ti t t. inn f o r norvo ni the document.s t o 2 ',
Wanh i tuit c.n.
W.
13 think o3 r.he b.ut i s of rnir conversat. ion,
A?iN R :I,FY I. ASS 00!ATES, 1.TD.
Court Report.et s i.' '. r.
I Stfeat, N.W.,
Suite 300 Washingteti, D.C.
20005 i
S,page_2. of M i f'
1202) 642-0014 Exhibit 1
r--
D~.T-25-1994 20:57 p,y4 L
n n a. "r.,sr.m* >na t. s.
- n *,.s u u: a c o w.osn u oa r..+
2 At Iant a.
JrJDGE BLrlII:
50 you have the working agteement 1
4 bu t.
if it
.f>,- s n ' t wonk out, yc.2
.:se rve t he riqht to make a e,
.g 3 e f,.,,.n r ran' i < n J t.
MP. "OhAI'I NTr~s :
cc,r rect, and w.r're optimistic that
/
t h,st wtll 14 resolved,
.J'J!r;E BLOCH :
Is the re po r t. of the parties s
i.,ss,;.1.: e a.. t ?
l 's MP. 14!.AK E :
Ye.s. ci1.
11
.TUD'3E SLOCII:
Then thete is an item on our agenda 1?
e ha.
- w.. wauld 1ike to covar We are concerned to expedite 14 t h. wr r k of t he board in t ha concluding portions of this 14
- t or <..1i ng, ind enr-way t~ do that is to make sure that we h
l <,
- n. v.. t h.s computer compat ible record so that we can do
{
- s. u"ber, ii we have thom, among tha praliminary proposed
- 1..
11 f i n.1 i :qn Any of ha preliminary raports that may already dtok w wld tse helpful to un en the O! rapert and t he tw 1,. -
1.
qi..;.
i..p.. - and not ice n' vinlation.
There may be other
/0 i ";.. r *. s e h.i-wi11 bo submitted in evidence, perhaps they're 21
'Ai".. nano r "por t s, that we can aIno get on disk, plus any
?/
oxhtl'ii.s t h st a.c available in computer form.
There may be ri a w,i y, d.ponding on how t his is done, t. h a t it would be
- ' t hol; f ul t n tha pa t t i *
- s, 1ut I su s p.= c t the parties have al t. ady d"cided how t. hey are geing to do that for
? r.
ANN RILEY & ASSOCIATES, I.TD.
f cour. Repot tern 1250 I Ftteet.
N.W.,
Suito 100 gC' Washington, D.C.
200 %
(202' 942-0034 i
1
---Exhibit 3 page bmf 3 ---
)
l I.
TOTAL P.14 r
i i
OCT-25-1994 20:54 P.07 CERTIFICATE OF SERVICE I hereby certify that Intervenor's Motion for Protective Order was served via first class mail (with additional service via facsimile, where indicated by an asterisk
"*"),
on October 25, 1994 upon the persons listed in the attached Service List.
By:
/$4u/}'$nf f) 41%,
Mary Jp'pb Nilthoth Dated:
October 25, 1994 C:\\f1LE5\\301\\ MOTION.P0 00 09 OTI D
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P.02 oCT-25-199A 20:5A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
Dccket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY
)
50-425-OLA-3 g!;, a l.,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 SERVICE LIST
- Administrative Judge Administrative Judge Peter B. Bloch, Chair James H.
Carpenter Atomic Safety and Licensing Board 933 Green Point Drive U.S. Nuclear Regulatory Commission Oyster Point Washington, D.C.
20555 Sunset Beach, NC 28468
- Administrative Judge
- Charles A. Barth, Esq.
Thomas D.
Murphy Office of General Counsel Atomic Safety and Licensing Board U.S.
N.R.C U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 John Lamberski, Esq.
- Ernest L.
Blake, Jr.
Troutman Sanders David R. Lewis Suite 5200 SHAW, PITTMAN, POTTS &
600 Peachtree Street, N.E.
TROWBRIDGE Atlanta, GA 30308-2216 2300 N Street, N.W.
Washington, D.C.
20037
- Office of the Secretary Attn: Docketing and Service U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C.
20555 301\\ cert.lis i
i a